US Immigration and New York Employment Law

BFOQ Defense against Claims of Discrimination in the Workplace

Bona Fide Occupational Qualification (BFOQ)

Bona Fide Occupational Qualification (BFOQ) defense is provided under section 703(e) of Title VII of the Civil Rights Act. According to it, it is not against the law to hire employees based on national origin, religion, or sex when such a differentiation is reasonably necessary to the normal operation of a particular business. Employers can use this defense against claims of discrimination in the workplace .

However, this defense is of a limited character. For instance, when during hiring process an employer differentiates candidates based on sex, it should follow the guidelines established by the Equal Employment Opportunity Commission (EEOC). The guidelines provide a list of exceptions, which do not provide the BFOQ defense for employers. In these cases employers cannot refuse to hire women claiming the BFOQ defense. The exceptions are the following:

  • when an employer refuses to hire women assuming that women have certain employment characteristics like higher turnover rate in comparison with men;
  • when an employer refuses to hire women, because of certain stereotypes like that women are less determined as business persons or less aggressive as salespersons;
  • when an employer refuses to hire women, because of certain gender preferences of co-workers, clients, customers or the employer;
  • when an employer refuses to hire women, because of certain additional expenses related to such a hiring (e.g. providing separate facilities and accommodations).

One of the most famous cases on the topic is Dothard v. Rawlinson, 433 U.S. 321 (1977) . The plaintiff complained that she was not hired on a discriminatory basis for the position of a correction officer in a maximum security male prison because she did not correspond to certain height (5’2’’) and weight (120 pounds) requirements. She alleged that those practices of hiring were examples of gender inequality and discrimination in the workplace.

The Supreme Court’s opinion is noteworthy. On the one hand, the Court ruled that those height and weight requirements are impermissible and discriminatory. On the other hand, it ruled that the state prison could refuse to hire women for “contact positions” even though in that case it would mean that women could not be hired for 75% of the jobs in the Alabama detention penitentiaries.